- Unmarried partners who have lived together in a marriage-like relationship for at least 2 years can have property, including pension entitlements, divided under the Family Law Act.
- Pension division under Part 6 is available only to spouses who meet the 2-year test, and a child together is not enough.
- An application for property or pension division must generally be made within 2 years, and for unmarried spouses that period runs from separation.
When a common-law relationship ends, retirement money is often the largest asset after the home, and it may be held in only one partner's name. Many people assume that means it belongs only to that partner.
In British Columbia, the Family Law Act can treat qualifying unmarried partners much like married ones when it comes to property. This article explains who qualifies, what counts, how pensions are handled, and the time limit to keep in mind.
This article covers the law of British Columbia.
Who can claim a share
A person is a spouse under the Family Law Act if they are married, or if they have lived with another person in a marriage-like relationship for a continuous period of at least 2 years.
Before 2013, unmarried couples could not ask a court to divide property under the family property legislation, however long they had lived together. Since the Family Law Act, qualifying common-law couples can.
Couples can opt out of these rules by agreement. A child together can make someone a spouse for support and parenting matters, but not for property or pension division.
What counts as family property
Family property is property owned by at least one spouse, or in which at least one spouse has a beneficial interest, on the date of separation. It includes shares, business interests, tax refunds, bank account money, annuities and pension entitlements.
Each spouse generally has a right to an undivided half interest in all family property on separation. Property is valued at fair market value unless an agreement or order says otherwise.
Some property is excluded, such as property acquired before the relationship began, inheritances and gifts from third parties. A spouse who claims property is excluded must prove it. Whether a particular retirement account is family property, excluded property or a mix of both depends on its history, so it is worth confirming with a lawyer.
How pensions are divided
A spouse's share of pension benefits under the property division rules is determined under Part 6 of the Act. The method depends on the type of plan.
| Type of plan | What may happen |
|---|---|
| Defined contribution account | A spouse may give notice to have their share transferred to their own credit. |
| Benefit-formula plan, before the pension starts | The spouse may become a limited member and take a separate pension, or take a transfer of commuted value only if the plan allows it. |
| Pension already being paid, LIRAs and LIFs | Part 6 also covers division after the pension starts and LIRAs and LIFs. |
Part 6 also deals with the death of a member or limited member, and with waiving division.
Unequal division, agreements and protecting assets
Spouses may make agreements dividing property and debt equally or unequally. The court can set aside a witnessed written agreement only on listed grounds, such as a spouse failing to disclose significant property or debts or not understanding the agreement.
Without an agreement, the Supreme Court may order an unequal division if an equal one would be significantly unfair. A spouse can also ask the Supreme Court to restrain the other from disposing of property that is at issue.
What to do next
The deadline matters. An application for property or pension division must generally be made within 2 years, and for unmarried spouses that runs from the date of separation. The period is suspended while the spouses are in family dispute resolution or a prescribed process.
- Work out when your relationship began and when you separated, since the start date is the earlier of moving in together and marrying.
- Gather statements for pensions, retirement accounts, bank accounts and other assets.
- Collect proof of anything you say is excluded property, such as an inheritance or an asset from before the relationship.
- Keep any written agreement about property or support.
- Speak with a lawyer early about the deadline and the type of plans involved.
Frequently asked questions
Do we need to be married to divide a pension?
No. Unmarried partners who have lived together in a marriage-like relationship for at least 2 years can be spouses for property purposes. Pension entitlements are part of family property.
Does a child together qualify us for pension division?
No. A child together can make someone a spouse for support and parenting matters, but Part 6 pension division is available only to spouses who meet the 2-year test.
Do I lose my claim if we move back in together briefly?
Not necessarily. Spouses are not treated as having separated if, within one year after separating, they resume living together primarily to reconcile and live together for periods totalling at least 90 days. The details depend on your situation.
Can we be separated while living in the same home?
Yes. Spouses may be separated while still living in the same residence. The court may treat a communicated intention to separate permanently, or an action showing that intention, as evidence of separation.
Sources
- Family Law Act, SBC 2011, c. 25, s. 3 (BC Laws) — bclaws.gov.bc.ca
- Family Law Act s. 83 (Part 5) — bclaws.gov.bc.ca
- gov.bc.ca – Common-law property and debt — www2.gov.bc.ca
- Family Law Act s. 198 — bclaws.gov.bc.ca
- Family Law Act Part 6 (s. 111) — bclaws.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a family law question
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